Finders

Question 1

What were the elements of Moffat v Kazana? (Rights and Duties of a Finder as Against the True Owner of the Goods).

Answer 1

Facts:

Moffat v Kazana involved a couple. And a house where there was a tin that was found. A tin of money which was worth nearly £2000.

• In 1950, Mr Russell had passed away.
• In 1950, Mr and Ms Russell had travelled with their tin of money in the car,
• So they gave evidence that when they went to move into this house they had a tin of money sitting between them in the car.
• They got to the house and Mr Russell climbed up a ladder into the roof and went upstairs into the roof and put the tin of money in the roof and came back down again.
• So that was the first bit of evidence to show there was a tin of money that Mr Russell (who passed away during the proceedings, which is why Mr Moffat is acting on his behalf of his estate) owned.
• When the Russells were living together in this house a few things happened.
• To win the case Mr Russell had to prove that he was the true owner of this tin of money and that he had forgotten about it.
• The second bit of evidence was that his son in law wanted to buy a car and he didn’t have enough money from selling his own car so he’s going to go on hire purchase, and Mr Russell said don’t go near hire purchase I will lend you £100.
• So Mr Russell went up the ladder, got the tin of money and got some money and brought down £98 and gave him a couple of pounds out of his pocket and gave it to him.
• So these were the two bits of evidence that showed that there was a tin of money inside this particular roof just not far away from the chimney.
• What happened next was the house was sold in 1961 to Mr Kazana, and Mr Kazana is the person who as we will find out has the money in his bank account at this stage. Mr Kazana was totally unaware of the tin.
• The Court accepted that Mr Russell must have forgotten about the tin of money because it is a long period of time between 1950 and 1961, 11 years, he may have forgotten that the tin of money was up there when they moved out as they may have had a lot of pressure to move out.
• And so, what happened next was this. Mr Stokes who was putting in something for Kazana’s kitchen had to go up in the roof, he knocked a few things out and then this tin of money popped out.
• Stokes did not say anything to Mr Kazana and brought it to the police which was an honest thing to do as he could have taken the tin of money and they would have never heard about it and never known what happened to it.
• So Stokes gave the tin to the police, and the police then gave it to Mr Kazana who put the money into his bank account.
• Mr Russell found out about this and wanted to claim it back as the true owner, so he wanted to claim it back as the true owner. So now lets see how it played out.

So we have a case between the true owner and Kazana.

Reasoning/decision:

• Mr Russell was held to be the true owner based on evidence.

It is really important to prove his ownership rights because as we will see the law of property has a strong emphasis on protecting the rights of true owners. All of property law is about protecting the title of true owners saying you are the true owner and that the law will protect you. Although we don’t do it so well when it comes to claims by Maori iwi who are the true owners most of NZ.

• So what happened next was as the Russells were the true owners. The true owner of a chattel found on land has a title superior to anybody else. So that is one of the fundamental principles of property law if you can show you are the true owner of something then the law will protect that ownership, that is the whole point of property law. Is to protect the right of owners. So the common law was based on a concept of individual ownership of things and so therefore if you can show that you are the true owner, then your rights will be protected.
• So these are the first two propositions. There was clear evidence that Mr Russell was the true owner and now we have to look at has he given away his rights of ownership? Because as an owner you can give away your rights of ownership, so what are the ways you can give away your rights of ownership.
• Sale. Abandonment which requires intent to leave the chattel behind so if someone leaves a very valuable computer behind and forgets about it and walks out they haven’t abandoned it unless they say that they don’t want this computer anymore and I hate it and I am leaving it here and anyone can have it which would be intent to abandon, but without a clear intent, as it was accepted that Russell had forgotten about it and forgetting about something and leaving it behind does not mean you have abandoned it.

There is a whole law of theft by finding, if you leave something behind somewhere and forget about it, and someone says its theirs now, they haven’t clearly abandoned it, it is still owned by them. And if it is owned by someone and you take it you are stealing. You can take property that has been abandoned because nobody is an owner at that point. So there is no theft if you take the property that is abandoned but you run the risk if you find something and don’t hand it in and keep it and they find out that it’s valuable property that the true owner may have forgotten about it. If they have abandoned it, no problem, it doesn’t belong to anyone, but if they haven’t you are stealing their property because they still have ownership rights.

• Another way you can give away your rights of ownership is gifting. And a gift is done by intending to gift the chattel and a physical act. The crucial thing about all the property law stuff is that it requires intent and it requires a physical act. So here is a gift for you today, intent, and a physical act of handing it over to you, so it requires both those things, you can’t assume when someone has left something behind that they have gifted it you. There must be clear intent, and a physical act of giving it over.
• Lets go through these ways of giving away ownership rights and see how they applied in this particular case.
• Did Mr R divest himself of the title?
• Abandonment. And you can’t abandon it unless you intend to, forgetfulness is not abandonment, that is really important. So even if something is lying on the road and you think someone has abandoned it you can’t be sure, it may have fallen out of their car and they may have been totally unaware of it and its quite valuable, if you did pick it up and run away with it, someone saw it, you could be charged with theft by finding. Because if its owned by someone who has forgotten about it, it is still owned by someone.

So there was no abandonment here because Mr Russell had forgotten.

• Gift? Again, he didn’t have any particular reason to leave a gift for Mr Kazana, so there was no gift.
• So the one that was arguable was: Sale? Because Russell did sell the house to Mr Kazana after all. So Mr Kazana said that Mr Russell sold him the house. And the tin of money was found in the house. So therefore, he sold it to me. The problem with the argument of sale was, although Mr Russell had clearly intended to sell the house, when you sell a house you actually sell the property and the building, chattels (things) inside the house don’t go with the sale, they do go with the sale if you list them in the sale agreement, so you say you can have the house plus the bedroom furniture, plus something else, but you have to put those things in the agreement for sale and purchase, if they are not there then they are not automatically sold in those circumstances. So that was the problem that Mr Kazana faced.
• Impasse argument? But then we come to the impasse argument, which was a clever argument, and the Judge does congratulate the lawyer for Mr Kazana saying he showed great imagination. What lawyers do when they are stuck, they come up with a hypothetical to say well your honour we should imply a sale of things in the house, he gave the example which was quite good. If for example Mr Kazana did find the tin of money up in the roof, but he left it there, and decided he would leave it there, and didn’t even open it, and suddenly Mr Russell rings up and said i left that tin of money behind, can I come around and come up the ladder and get that tin of money out. Mr Kazana can say as the property owner that it is my property, you can’t come on without my consent and I don’t want you rumbling around in my roof potentially causing damage to the roof, i’m not going to touch the money because if he took the money himself he would be committing theft by appropriating someone else’s chattel. He’s leaving it there, but even though Mr Russell wants to, Mr Kazana does not need to entertain Russell coming into his house. Kazana can say it is not my responsibility to risk my life going up a ladder to get the money out, so it will stay where it is.

So there are two quite clear rights in this situation. The right to keep people off your property because it is your property, and the right to try and get your money back because you left it behind.

The Court did not resolve this impasse argument issue and they left it. And said it is a good argument it will come up another day.

• So know we know that the true owner if they haven’t abandoned, gifted, sold their property then they will be protected by the law.

Question 2

What are the elements of the ANZ Bank Case where Moffat v Kazana was applied? (Rights and Duties of a Finder)

Answer 2

Facts:

• This was an unreported case a few years later where the ANZ bank had a desk and they gave it away to a courier.
• The Courier then sold it to a company and then,
• The Company sold it to Auctioneers.
• Nobody has opened the desk, so the desk has been passed around and sold by various people and passed around and went to auctioneers.
• The auctioneers put it up for auction and the particular person in this case was the finder who was the plaintiff who found it.
• $11,000 dollars in old bank notes were found inside that desk and so what happened was he, the person was a very honest finder and under s58 of The Police Act 1958 (now replaced by 2008 Policing Act, similar provision at s 40) he handed it to the police.
• And the police under that Act can decide what to do with the particular property.
• the ANZ bank found out about it, that they had left that money in the particular draw that they had given away to the courier.

Decision:

• Wellington Case, what happened was the bank won the case because they were the true owners and they had forgotten about the money, they didn’t intend to gift it, they didn’t intend to sell it, and they didn’t intend to give it away in any way. And so they were able to claim it.
• So this was an application of Moffat v Kazana.

Forgetting something is not abandoning it and it doesn’t give automatic rights to the other person.

• The Police Act is now called The Policing Act. But when people hand in things to the police the police try and make some effort to find the true owner and if they don’t then they often auction them off at that point to someone because normally after a period of time the true owner may have claimed insurance on it, forgotten about it or may come back but they don’t come back normally.

The first proposition we know is that true owners as long as they haven’t abandoned it or sold it or gifted it in anyway will always have the better right if they come back so they are number one. But in some cases the true owner doesn’t come back.

Question 3

What are the Duties of a Finder to the true owner basic outline? (Finders rights and duties)

Answer 3

Finders do have duties, there is no requirement to find things, so if you see a million dollar watch lying outside the lecture theatre you don’t have to find it. There is no requirement to find it. But if you do decide to find it (and we will look at what a finder has to do to find it), then the law does require certain things of you and we will come back to this again in the next lecture in Helsens case.

• Gilchrist Watt & Sanderson v York Products: [1970] 1 WLR 1262
• Obiter: “possession” keep safety and return - bailee for True Owner. When they take possession of it and we will look at what possession means, when they take possession of a lost article they are meant to keep it safe and return it, they become whats known as a bailee they are looking after it on behalf of the true owner, now most people hand it in to the appropriate place thats acting to keep it safely, that is handing it in is normally acting with it safely, so the true owner can’t sue you if the person you handed it in to does the wrong thing (and we will see in Helsen’s case they give it away to the wrong person and a case involving conversion).
• So you are required to keep it safely, keep safely and return.

So lets look at a couple of cases on possession.

• “Possession”

Question 4

What are the elements of Newman v Bourne and Hollingsworth: (1915) 31 TLR 209 - Brooch voluntarily taken into care (act and intent). (The duties of a finder case on possession)

Answer 4

Facts:

• In this case what happened was in Newman v Bourne and Hollingsworth
• What happened was a brooch was taken into care in a shop
• The brooch was stuck in a drawer and then when the true owner came back it wasn’t there, so they had not taken sufficient care of it.
• They had taken possession of it and hadn’t taken sufficient care so they can sue them saying you didn’t act carefully enough as a bailee.

Decision:

• Should they get all their damages? So it comes to you didn’t act carefully enough you’ve got to take reasonable care as it is a negligence claim. Should they get all their damages? Given they left it behind themselves, by leaving it behind themselves they have been contributing to negligence, so they won’t get their full damages back because they were negligent but also the person who took possession didn’t take sufficient care of it and so the damage would be split someway between them. They won’t get their full amount back because if it hadn’t been for the person who had been negligent in the first place they wouldn’t have taken possession of it, but they must take possession of it.

Question 5

What are the elements of Warner v Elizabeth Arden: (1939) 83 Sol Jo 258 - Necklace. (The duties of a finder case on possession)

Answer 5

In this case it is an example of not taking possession.

• In this case a person went into a dressing room in Elizabeth Arden (which is another shop)
• And they took of a necklace to get changed with some new clothes they wanted to try and they left the necklace behind in the dressing shed and went off.
• They realised that they left their necklace behind, and they came back, and the necklace was gone and they sued Elizabeth Arden.

Decision:

• What can Elizabeth Arden argue? They hadn’t taken possession, they hadn’t voluntarily taken care of it, so at that point, they cannot at that point be held liable because they haven’t taken sufficient care of the particular object and so in that case they were held not be a bailee as they hadn’t taken into their care the object.

You are not required to take into your care, if we find the person who did steal the necklace, they have committed theft, because it does still belong to someone and it wasn’t left their as a donation for them or as a gift, so we can.

So we are getting the feel of how property law works, it’s about protecting rights of true owners, but you are not required to take care of something someone has lost or left behind but on the other hand if you do you are meant to take sufficient reasonable care of it which is normally handing it in to the lost and found office or handing it in to the police and you have done your bit in that circumstance.

But running off with it when it is valuable and you get found you may be guilty of theft in those circumstances unless you can show that it was obvious to you that it was abandoned, that can be a defence but its a quite hard one to run.

So those are the duties of a finder in relation to the true owner and the rights of a finder.

Question 6

What are the Rights of a Finder v Complete Stranger basic outline?

Answer 6

So what we are going to focus on now is the kind of issues that you need to be able to resolve in a problem.

Most cases the true owner doesn’t come back and in Helsens case they do which we will look at but in most cases what does the law do if a true owner doesn’t come back? The law has to do something we can’t just say well finders keepers in every case, that may not be appropriate in every case because occupiers will argue well i should have a better right to it in those circumstances, so the law has to respond in some way that makes absolutely sure that there is some rights of possession for the finder or rights of possession for the occupier.

So what we are going to focus on now is when the true owner doesn’t come back we have to give it to someone we can’t just leave it with nobody and we have to give them some rights in relation to it, they won’t be better rights than the true owner but they will be better than anyone else. Because the law has to distribute it in some way when there has been a finders case. And these cases go right back a long way in common law history.

Question 7

What are the elements of Armory v Delamirie: (1721) 1 Stra 505. (Rights of Finder v Complete Stranger).

Answer 7

This case was a long time ago and it was about the rights of a finder in relation to a complete stranger, and you will see this case cited in all the finders cases we are going to read it is a famous old case called Armory v Delamirie, and it is way back in the 1700s.

This was a very famous case and every case you read on finders you will see this case cited.

So lets go through it step by step.

Facts:

In this particular case this is what happened.

• The finder was a chimney sweep, he finds a jewel, not clear where he found it but he found a jewel, and there is no true owner claiming it and there is no evidence that he had found it illegally or anything like that. But he found it. And there was no question about him being a dishonest finder because we will see if people are dishonest finders they will lose their rights, so he’s an honest finder who finds a jewel.
• So what the chimney sweep decides to do is take it to a jeweller to get it valued he wants to see how valuable it is.
• So he took it to the Jeweller’s shop and said i want to know what this jewel is worth so i can get some money for it i am the finder of the jewel and what happened was the apprentice took the jewel out of it and took out the stone and what happened next was.
• He took out the stone and what happens next is the Jeweller offers three half pence, that is 1 and a half cents, which is not very much even in those days,
• And so the Chimney Sweep decided no I don’t want the three half pence I want my jewel back ill get a better deal from someone else.
• And the Jeweller said you won’t have it back.
• The Jeweller refused to give it back.
• The Jeweller said the Chimney Sweep can be given the socket but we will keep the jewel.

Issue:

• So the issue then is who has a better right to it? The jeweller is saying you found it, now I found it, now I am going to keep it, and probably make a lot more money than one a half cents on the deal.
• Lawyers in those days went to Court for this case for the finder to see what should happen in this particular case.
• So it seems like a small amount of money in todays terms but it was an important issue.
• And so they went to Court and what happened was…

And so they went to Court for the chimney sweep who did a good job of finding it and wanted to know what it was worth.

Decision:

• The Chimney Sweep as the finder is clearly on the moral right position here, if he hadn’t found it the jeweller would never have got it so the only claim the jeweller has is someone handed it in to get it valued. But the actual finder actually found it and that was accepted. So The Court SHOULD decide in that way.
• So The Court ruled in the finders favour and said that the finder has a property right against all but the rightful owner. So this was the first case, important case that says that you do have a property right as a finder, if you take into possession and take care of something and the true owner doesn’t come back we are going to give you a property right, not as good as the true owner, because the true owner always has the ultimate right, but they often don’t come back, but a right above all others particularly in this case the Jeweller.
• So this was the first precedent in our common law history to give a right to finders so that is why it always gets cited in all those cases it goes way back to the 1700s.
• So finders can have a property right, not as good as the true owner, but if the true owner doesn’t come back better than anyone else in certain circumstances.
• And what they did was The Court ruled that unless they produced it the jewel would be valued at the price of the best jewel in the shop, so unless they give him the jewel back it would be valued as the most valuable jewel in the shop so you would have to pay a lot more money for it so I’m sure the jeweller gave the jewel back.
• But it is a really important case in our common law history that said finders do have rights, property rights, and they have a better property right than a complete stranger, someone who was not involved, it wasn’t found on their premises, or anything else.
• So in relation to a complete stranger the finder will always have a better right, not better than the true owner, so it is a hierarchy of rights but a better right than anyone else except the true owner.
• So we know that true owners have the highest rights, against complete strangers property rights goes to finder. True owner is still there.

Key issue:

• Who comes into “possession” first? The Chimney sweep had come into possession first and you can come into possession in a variety of ways we will see, so either by, he picked it up, found it , and took it off to get it valued and there was no true owner. In that case they probably didn’t have a lot of lost and found officers back in those days so therefore the chimney sweep had the better right to it.

Question 8

Rights of a Finder v The Occupier of Land on Which Goods are found basic outline.

Answer 8

The rights of a finder against an occupier of land on which the goods are found. The finder is saying I have a right to it because I found it, if I hadn’t found it then i should have a better right.

The occupier of land says but you are on my land, if you hadn’t been on my land you wouldn’t have found it so both have a moral claim and i found it, but its on my land. Therefore my land should give me a better right then you finding it.

The first case there is a contest between the finder and occupier of land and we will look at some other cases in the next lecture where there are cases between occupiers and finders. This has been the issue that is right up until today people still argue over it, the big case involved British Airways in another lecture, when a man found a very valuable bracelet there, so we will look at those cases as we go along.

Question 9

What are the elements of Bridges v Hawkesworth? (the Rights of a Finder v The Occupier of Land on which Goods are Found)

Answer 9

This case is about who comes into possession first.

Facts:

• The case is called Bridges v Hawkesworth and it was an appeal case because their was a first case.
• So a man goes into a shop, he is a traveller and he goes into a shop comes in,
• And the traveller he sees on the floor some money,
• So he gives the money to the shopkeeper, and he says I found this money on the floor can you hold on to it and put an advert up if the true owner comes back to claim it.
• So he’s a very honest finder and he hands it in to the shop and an advert does come up, and advertisement does come up and its on the door,
• And a few years later the traveller (about three years later) he comes back and says whats happened nobody has claimed the money.
• And the traveller offers to pay for the advertisement and even indemnify the guy if the true owner did come back and he had given the money, indemnify him.
• So he the traveller was prepared to do everything he could.
• The shopkeeper said no, it was found in my shop, so therefore i have a better right to it.
• The shopkeeper actually won in the lower Court. But it went to the Queens Bench which is the equivalent of the High Court. And it was about £15 pounds of money.
• The judgement was one page, Justice Patterson.

Analysis in the judgement:

• Notes Found on floor of shop, it did not say which part of the floor it was found on, presume it was the public part of the shop, but it didn’t say it explicitly in the facts. The next case talks about the public part but it just says found on the floor of the shop, presume it was the public part, didn’t actually say the public part but it looks like it probably was, but the next case to distinguish it says it was the public part of the shop but there was nothing mentioned about where it was found it was just found on the floor. On the floor too thats important in the shop.
• He handed it in to the shopkeeper so that shows that he is a honest finder, and the law should reward honesty and not penalise it. So he hands it in and just incase the true owner comes back so he knows that someones dropped that and it is wrapped up in paper on the floor that money has fallen out of someones pocket.
• What they said in this case was the Finder has a better right except for the true owner at the moment those notes are picked up. That picking them up, when you pick those notes of the floor, when he is picking them up he is taking possession of them at that point, its crucial as a finder, its important that you take possession, he’s taking control of them and he’s acted honestly, those are crucial things that go through all the finders cases, he has done that, he’s handed it in.
• The Court did say that the Shopkeeper could win but what did the shop owner have to do to win, he had to show, the only way the shop owner could win was not because he was in his shop but not on these facts. If someone had handed the notes in beforehand saying can you look after my bank notes for me and they had fallen off the desk then he already had control and possession beforehand and they fell off, and so he does give that as an example saying if they had fallen of the desk then it would be different.
• Occupier can only have a better right if it arose before the finding (eg if they were intentionally deposited). So if someone said can you look after my bank notes I’m going off to do something and then forgot about it, then he would have had a right better then the finder, because they had been intentionally given to him, but in this case there was no evidence of that, they had fallen out of someones pocket and fallen onto the floor.

So it is all about how you come into possession and who comes into possession first.

What about the fact that the store owner argued that I did the advertising and he handed them in anyway, does the handing in limit his rights? Because he gave them to me to look after, because it was a handing over, The Court said that it does not make a difference, The Court very clearly said that makes no difference.

• The Court said the Handing over to occupier and advertising does not limit the finder’s rights. As long as you take sufficient care and control of them which he did, he handed them in for a purpose which is can they come back, if they come back put an advertisement up and I am happy if they come back, nobody did come back so he wasn’t saying I’m not taking control you can take control of this, he was saying i want to be responsible and he shouldn’t be penalised for that, so handing something in does not give up your rights as a finder if nobody claims it and you find it in a situation like this.

So this is your classic finders case where the finder has a better right because he took control of it, he acted responsibly he handed it in and so therefore he was able to get £50 pound back and also the other side had to pay his costs to bring the appeal so that was a good win for the finder.

But it is an important precedent this is the first case where a finder wins over an occupier, because they were on the floor he handed them in and he acted responsibly.

Question 10

What are the elements of found case South Staffordshire Water Co v Sharman? (the Rights of a finder against an occupier of land which goods are found)

Answer 10

Facts:

• South Staffordshire Water Co had this large pool called Minster pool which is still there.
• Sharman was an employee who was cleaning out the pool and found lots of things in the pool when he was cleaning it out.
• But also under the mud found two gold rings which were worth quite a but of money. And nobody claimed these rings.
• So Sharman was really arguing Bridges case saying that I am the finder and no true owner has claimed them and I found them and no-one had handed them in to the employer so I have a better right to them.
• But we can see that in this case The Court has a different way of looking at these cases which changes it. The reason why in Bridges case if it hadn’t been handed in then you have taken responsibility but the employer took no responsibility for these particular rings at all, so its a different basis altogether.

Decision:

• What happened was The Court said that possession of land includes possession of things attached to or under the land in the absence of better title. So possession of land also gives you possession of things attached to or under the land. So if you possess land then you also possess things which are attached to or under the land. The law allows this because (it is an old common law principle) in the absence of better title and in the absence of a true owner (because they would have a better right) you have to disturb the land if something is attached to or under the land? You have to pull it away or dig it up. So the idea is because you have to disturb the land the person who possesses the land should have a better right. Based on that idea it is not based on the fact that they had custody in anyway they don’t have to know about it its saying that you possess the land and everything attached to or under it so your right is based on your possession of the land and attachments or under.

So on the facts of this case if you apply that principle the rings were found under the mud so they had to dig up the mud so the important thing here is the rings were found under the mud so they were under the land attached to or under the land in the absence of better title.

So this was the basis upon which The Court decides this case is different from Bridges v Hawkesworth’s case where it was on the floor of the shop here it was under the land the finder in Bridges case didn’t have to disturb the land just picked it up and handed it in, in this case Sharman was digging up the mud and therefore it was under the land so that is a very fine point but that gives occupiers a better right.

• B v H distinguished. But they re distinguished Bridges v Hawkesworth on the basis that it was the public part of the shop but we don’t know whether it was the public part or not but the real distinction was that it was on the land rather than under the land or attached to the land.

But then they went a step further (and that is why you have to read judgements carefully) right in the last paragraph they extend the application of this principle this is quite clear it had got to be attached or under so fundamentally its attached or under (and we will look at some examples of it).

But The Court says in the last paragraph you can also have a better right as an occupier even if its on the land but you have to show that your manifesting a clear intent that you control the land so private property is probably easy but you have to show a clear intent that you have control of the land because it goes a step further.

• Where manifest intent to control land and things on it then also possess things on it. So where there is a manifest intent to control the land and the things on it that you also possess the things on it. Manifest means make known to the world so if people put up signs saying that we control this area and all lost property in it you are making it known that you are controlling it before someone finds it you are staking your claim through your intent to control it and showing that you control it that you already have it and there are some areas as we will see by their very nature like private property you are controlling it because it is your property like a private house and those sort of things.

So if you show a manifest intent to control the land and the things in it you also have a right as occupier to things on the land not just things attached. So its quite a wide principle so this was stated right at the end of the judgement the facts of the case were about the thing being under the land but The Court said you would have also won if they had shown a clear intent to control that whole pool and anything even if it wasn’t under the mud even if it was on top of the mud then they ( there was no evidence that they did that in this situation) but they won this case because it was actually attached to.

So this becomes a very crucial principle in later cases when has a manifest intent been done. It’s the argument that had been made by the British Airways saying we control the lounge it was a lounge which you had to have a certain card to get in we’ve shown control over it. Was that enough control to say you also controlled lost property in the area. So it’s about how clear is your control that in itself gives you a right but it has to be very clear and they give some examples in that case.

So occupiers can win cases on quite a different basis they don’t even have to know about the property at all they can be totally ignorant of it as long as it is attached or under or they’ve shown a clear intent to control the land and the things on it not just controlling but the tighter the control the more The Courts will assume that you control the things on it so that becomes a big issue in future cases.

Question 11

What are the elements of City of London Corp v Appleyard [1963] 1 WLR 982. (Examples of applying the principle in Sharman) (Rights of a finder against the occupier of land).

Answer 11

Drawing diagrams of cases is helpful.

Facts:

• So the City of London were the owner of the premises so they owned the premises they leased them to a company so at that time the company were the people who possessed the land because they had a lease to possess the land and live there.
• There was a contract between the occupier of the land and The City of London which said if any articles of value are found on these premises they must be given back to the owner of the premises and they signed that contract.
• So they agreed in their lease that if they find something on their premises then that must be returned and its not claimed by the true owner that must be returned to the owner so they have agreed by contract as contracts are enforceable they signed it and they read the clause and they signed it.
• So what happened was the occupier of the land hired some building contractors to do some work on the property and they (the contractors) hired two employees at Appleyard and Appleyard’s friend.
• The employees were working in the basement so in the basement of the building and they saw this old safe in the corner and they became very curious about this old safe it was attached to the wall the safe so they decided to open the safe and what they found in there was £5728 so even today that would be a lot of money, back then in 1963 it was a lot of money as well (you could have bought a house with that sort of money) and basically they handed it in.

And now we have this claim between the City of London and Appleyard as to who should have a better right.

Arguments:

The arguments for The City of London and the Arguments for Appleyard and friend.

• So first of all, the possessor of the land company who has got the lease how would they try to claim it? (City of London) They didn’t argue for control of the land because it wasn’t clear that they had total control they let people go down and do the particular work but there was no signs up saying to keep your eyes out for lost property. They could’ve argued control but that wasn’t the argument they run they could’ve said it was in the basement area that we have control over so therefore we have control of everything in that area. They didn’t make that argument but they could’ve. You have some degree of control over it because of the lease but it would depend on how big the premises were and what was going on in the premises because it was a company rather than a private house. A private house would be easier to argue that a company with lots of people coming and going might be a little bit different to say you actually have control over it maybe somewhere in the middle.
• The City of London actually argued that the safe was attached to the building but the money wasn’t so they argued that because the safe was attached to the building they therefore had a right to anything inside the safe it was a presumption that if they have a claim to the safe because it wasn’t their safe and it wasn’t their money therefore they have a right to anything inside the safe its presumed that if it’s attached and they opened it they didn’t remove the safe they just took the money out but they are saying because its attached they have a right and its not the land here it is the building if things attached to the land go the person who possesses the land then you can also argue that things attached to the building should also go so you had to extend it a little bit because it wasn’t the land it was the building.

Every fact is important in law remember.

So that was the argument for the possessor of the land. Because the safe was attached to the building and going back to the principle in Sharman’s case therefore they should have everything that is in that safe because it was attached to the building which they possessed.

• And of course the City of London can argue that because they had a better right to it the company, they win through the contract because it was found on the premises and they have to give it back under their lease to The City of London.
• Applyard and friend argued to get around the attached argument. They said the money wasn’t attached you can have the safe we can have the money safe is all yours money is all ours because they didn’t have to remove anything they didn’t have to damage the property in anyway they just opened the safe took the money out and it remained exactly where it was unlike Sharman’s case they had to dig it up and if its attached then they didn’t have to pull anything away the safe remained which is quite a good argument we found the money we didn’t have to the whole point of the attached is you have to remove something but The Court didn’t accept that argument which is a bit sad.

Decision:

The Court took the view that because it was attached then you also have what is inside of it as well. So they were more in favour of it because it was attached therefore you have a better right to everything that is inside it even though they didn’t have to pull it away because that is the whole reason we give a better right if you have to pull something off someones property then they should have a better right because you damaged the property to get the goods this case there is no damage to the property (disturbing) at all so i thought that they had a good argument.

But Appleyard lost the case so The Court decided because the safe was attached to the building so thats an extension of Sharman’s case it is not just things attached to land but also attached to the building they therefore had a better right based on the safe being attached so at the time they found the money they already had a better right because the safe was attached and they had a right to everything inside that safe so therefore they had a better right. They came into possession first because it was in something attached to their building therefore that gave them a right also if it is an area they controlled they had a better right so they came into possession merely because the safe was attached so at the time they found it it was too late it was already attached by being inside that safe.

So that is an application of the principle in Sharman’s case but extending it slightly. So that is one example and so the contract of course meant they had to hand it back to The City of London and the City of London won the case any articles found you would have to hand them back so the contract came into it as well.

Question 12

What are the elements of Hannah v Peel (1945) 1 KB 509? (Examples of applying the principle in Sharman) (Rights of a finder against the occupier of land).

Answer 12

Facts:

This case was during war time and rules are always different during wartime, this case gets cited in lots of the other cases.

• House requisitioned by the Army during war. The house was requisitioned by the army so during war time emergency powers can be given and the government can use emergency powers to take peoples houses of them because they need them for the army purposes so people have to move out of their house so the owner of the house who normally would be living in it it was a private house would be in a strong position but they had to move out and
• So what happened was a soldier was billeted in the house. So they were billeting their soldiers in this house and they needed to use this house for billet purposes.
• And he Found a brooch in the crevice of a windowsill. So its in the crevice, it is not attached it is just lying in the crevice so they can take it out of the crevice of the windowsill but it was found inside what was originally a private house in this case. A soldier found it.
• Handed it to the police. And handed it to the police.

so the owner of the house comes back and says it was found in my house its my private house i must have a better right to it surely and you would think they should.

The soldier said no I’m the finder i should have a better right. Its quite a difficult situation in a case like this.

Can you argue a right of control if you are not living in your house? That was the hard part for the person who owned the house.

If it was a landlord then the landlord unless they have a contract the person who possesses the house would have the better right who may be in that case the person who has got the lease here.

Presume you can’t take their private possessions because they would be stealing their property but in this case it was in his possession it wasn’t something he left behind if it was his brooch then no problem because he can show that he is the true owner and the true owner always wins as long as they can show that they are the true owner but in this case he couldn’t show he was the true owner he was just a person who would’ve been living in the house if it hadn’t of been taken over.

But the house was possessed by the army but that was the weakness of his case.

Decision:

• True owner never claimed it. What The Court said in this case was the true owner never claimed it.
• Owner of the house claimed it from the police saying it was found in my house but the Court took the view which is quite tough.
• Soldier sued saying he had a better right.

And the Court said: Finders were employees in Sharman which was not the issue so they tried to distinguish Sharman by saying they are employees well it didn’t matter that they were employees as they were found under the mud that was the most important thing so judges don’t always get it right.

• He was not a true occupier - could not exercise control. So you have to actually be an occupier to exercise control according to that case so because he wasn’t living in the house if he was living in the house and the soldier came and stayed with him for a while no problem at all he would be the occupier and he would’ve won the case but he couldn’t because he was moved out by the government saying we need your house so it was really tough on him he was moved out so that case says to be an occupier and claim control of an area you have to be living in it to claim that control but it was taken away from him for a period of time requisitioned and therefore he lost out on that basis.

And it wasn’t attached in this particular case anyway so it’s important for occupiers to be in control at the time they find according to that case.

Question 13

What are the elements of Helson v McKenzies (Cuba Street) Ltd (application of Bridges v Hawkesworth).

Answer 13

What happened in this particular case was Ms Helson was the true owner.

This case was decided way back in the 1950s

Facts:

• Ms Helson came into the Mckenzies which was a big store and she had £422 pounds (alot of money) in her purse in 1950 you could have bought a lot with that money.
• So Ms Helson had all this money and she was careless she left it behind on the counter and off she went.
• And then Ms Mclean came along and Ms Mclean is the finder she comes along and thinks that purse is left there so she was an honest finder she picked up the purse and she handed it in to the floor walker and said look someone’s left this purse behind and it may have some valuable things in it and then it was given to another floor walker to look at.
• No-one checked inside it and then someone and it must have been someone watching this came over and said i think i lost my purse and they didn’t check inside or anything.

The floor walkers they hid it behind their back and this person (not sure if it was a male or a female) described what colour it was because they didn’t know what was in it what colour it was and that she had been at the counter nearby where the purse had been found.

• And so the floor walker assumed that this was the true owner because they hid it behind their back and asked what colour is it and what does it look like and the person said which colour it was and what it looked like so the floor walker gave it to this person.
• Ms Helsen (the original owner) remembered that she forgot her purse and comes back. And asks if the floor walkers have got her purse which they said that they gave it away to the true owner but Ms Nelson said that she is the true owner and that i am the true owner.
• So Ms Helson decided to sue Mckenzie’s.

And we will look at how she tried to sue them and on what basis to try and get some of the money back and so she sued them first of all as a bailee (Mckenzie) and then we will look at what The Court of Appeal said about that and also sued in conversion.

So first of all it went to The Court of Appeal this case first of all because in the lower Court they found that if Mckenzie were a bailee they had to be grossly negligent and they weren’t.

Decision:

• So first of all it went to The Court of Appeal in this case first of all because in the lower Court they found that if Mckenzie were a bailee they had to be grossly negligent and they weren’t the Court of Appeal didn’t agree with that.

Court of appeal decision:

• What are Mrs Mclean’s rights?

If the true owner hadn’t come back would Ms McLean have won the case? She was the finder what did they say about Ms Mclean? And they make it very clear in the Court of Appeal what would’ve happened for Ms Mclean? She picked it up she handed it in left her name and everything and the true owner has come back but if the true owner hadn’t come back would Mckenzie’s have won or would Ms Mclean have won? Very clear who would’ve won they applied the case of Bridges v Hawkesworth it was on the counter and no-one had claimed it they said Ms Mclean would win why would Ms Mclean have won so its a good case to show how finders could win why would Ms Mclean have won? Because the finder has better rights than anyone except the true owner and it wasn’t attached it wasn’t under and there was no evidence that they took control over the object and its a big shop Mckenzies no evidence that they took control over the area in that sense there was no signs up saying we take control over lost property so its not only control over the area its also control over things that may be in the area no evidence of that.

• So The Court said very clearly that Ms Mclean would have won as the finder she’s no different from the finder in Bridges v Hawkesworth but sadly for her the money is gone anyway and she is not making a claim.
• Were Mckenzies bailees for Mrs Helson?

Because that is what the lower Court had said High Court had said that and therefore they said Mckenzies had to be grossly negligent before they would have to pay her any damages.

But who effectively were Mckenzies bailees for? Who were they looking after it on behalf of? Who was their contract of bailment between who? Who handed it in to them? It was Ms Mclean said look after this incase the true owner comes so they agreed to be a bailee for Ms Mclean because they didn’t even know anything about Ms Helson so they were being a bailee for Ms Mclean who had handed it in to them so they said that was where the bailee relationship goes and so Ms Helson doesn’t have a bailee relationship at all.

And so the issues are whether it should be grossly negligent? And they actually said negligence is negligent whether it was gross or not it’s negligence is negligent so they said in this particular case that they were bailees for Ms Mclean so the bailee argument fell out.

But they had the conversion argument now you should know this what is required to prove conversion in a civil action? Whats required for conversion? Its a strict liability tort so what does that tell you? When do you convert someones property? What do you have to do? They take your title away from you basically so basically whats required is did they convert the bag did they deny Ms Helson her title? She’s the true owner but they have given it to someone else saying your the true owner so they have totally denied her title and it doesn’t matter how careful they have been it doesn’t matter how much care they took and they didn’t take enough care but it doesn’t matter even if they took all due care its a strict liability tort conversion even if your acting in good faith its still converted because what you have done is deny the person Ms Helson can no longer exercise her title her ownership because they’ve given her ownership to someone else saying you are the owner they have given it away they have converted it so intent doesn’t come into conversion which is very important how conversion works its just like Rylands v Fletcher you can be free from all blame and still convert something if you give it to the wrong person.

They even said if you read the judgement closely that if they hang on to it because they are not sure that wouldn’t be conversion they might say I’m not 100% sure your the true owner they are not denying the title of the true owner they are just making absolutely sure that you are before they hand it over but if they hand it over and you are not the true owner doesn’t matter how much care they took they will be liable in conversion so again care doesn’t come into it. That’s two strict liability torts you know Rylands v Fletcher and conversion its really important it goes back a long way.

So therefore they had clearly converted it and they could’ve done more of course they should have opened the bag and checked but that doesn’t matter even if they did everything right and they were convinced this person was the true owner if they denied the title thats all that’s required good intentions don’t apply.

So they clearly have converted the bag by giving it to the wrong person who has gone away.

• Contributory negligence £105 + costs. And then the issue becomes what do we give costs well they didn’t give her all her money back because they said clearly Ms Helson was contributory negligent leaving that much money which is a
  lot of money in those days sitting in a bag on the counter and walking out they even used the word “gross” which they didn’t like saying she was grossly negligent so she only got a quarter of her damages.

She didn’t get all her money back because they said she’s contributed three quarters of the problem here if she had been careful with her money and not done that she wouldn’t have lost three quarters because she’s been careless to that degree we are going to deny her three quarters of her damages so she didn’t get all the damages back in this case she only got £105 pound in this case rather than £422.

So its an interesting case the important point for our purposes because we are really concerned about finders rights Ms McLean would’ve won so its another Bridges v Hawkesworth and its an application of Bridges v Hawkesworth just like the case involving the wall safe (Appleyard) which is a case applying Sharman so they are applying different things.

Question 14

What are the elements of Grafstein v Holme and Freeman?

Answer 14

Key case this case reminds you that the simple things make all the difference in a law case so we will come to this case now.

Facts:

• So Grafstein was the employer and also the owner of the premises he sold dry goods and he had hired Holme and Freeman who were two young men aged 19 and 21 they were very young employees.
• Part of their job as employees was to clean underneath the basement and this is a classic case of what finders have to do so we will look at this transaction many times.
• So what they did was when (the employees) they were working in the basement one day they found a locked metal box with a whole lot of rubble over the top of it.

And they decided that they would bring it to the employer and this is the famous words that they said never say these words when you find something.

• “What shall I do with this” was said by the employees. What shall i do with this now can you interpret that in different ways?
• When you say what shall i do with it there are two different ways to interpret it one of them is what? I don’t know what to do with it you take control of it what’s the other way you can interpret it what shall i do with it? There are two ways you can interpret it The Court didn’t interpret it one way when i say to you what shall i do with something i could be doing what? Saying well you take control of it or i could be doing something else what else could i be doing? When i say what shall i do with it am i intending to give up control or could i be asking for advice I could be saying you advise me what i should do with it rather than what shall I do with it its more or less yours.
• So what the employer said what Mr Grafstein said was to put it on the shelf it could contain some tools.
• And so it was put on the shelf and it was not clear who put it on it looked like it was Holme who put it on the shelf so it was put on the shelf and they left the locked metal box there for a couple of years so it just sits on the shelf for quite a long period of time and no-one does anything about it.
• Then the two employees get very curious one day and they decide we should open up that padlocked box and see what’s in it and so they opened it up and they found $38,000 dollars a lot of money $38,000 Canadian dollars this is a Canadian Ontario Court of Appeal.
• So the question is and they said to Mr Grafstein that you’re rich and initially Mr Grafstein said we will maybe share this and we talk about that and then he said no i better get advice from a lawyer.
• So he got a QC in and the QC had said to Mr Grafstein that its yours you have a better right to it then those employees in this case.

So lets look at the analysis and what in the end was the crucial facts that decided the outcome of this case.

Decision:

• Treasure Trove
• Gold or silver bullion - Hidden in ground or house. One thing they talked about was treasure trove just a little passage about this quite an interesting old concept treasure trove goes back to the common law its an old common law doctrine and it didn’t apply in this case. If gold or silver bullion its gold or silver coins really are hidden in the ground or in a house and no-one claims them because they are initially minted by The Crown then they go back to The Crown if it is not hidden if it is just lying openly then you are able to if no-one claims it you are able to keep it but if its hidden in the ground or in a house then it goes back to The Crown because the idea is that someone is trying to hide it and therefore there must be something about it so therefore it should go back to The Crown of it is just lying openly and you find it then you are alright has to be hidden its an old doctrine but theres not much gold or silver coins these days anyways in fact theres no money at all hardly its all in notes today.

So that was an old doctrine that said The Crown then has the better right because they are the ones that created it in the first place and it was hidden in the ground.

• Goes to Crown - Where no true owner.
• If not “hidden” then does not go to Crown.

Its a very strange doctrine and it hardly ever applies these days but its just mentioned so you know about it as a background so theres always some funny doctrines that pop up in the law related to finders.

Grafstein: arguments:

• H & F - Finders. Holme and Freeman argued we are the finders we are the ones that opened the box and found the money and it wasn’t attached or anything like that it was just inside the box its not like the safe case (Appleyard).

Graftstein - Not Lost - Owner and occupier of premises is entitled prior possession - Servants deemed to find for him.

• Grafstein had a number of different arguments so for Grafstein the arguments from his lawyers were first of all it wasn’t lost which is a strange argument because no true owner claimed it so it must be lost but because it was found on his premises the trial judge said it wasn’t lost then gave it to Grafstein. But what does lost mean? If no-one is claiming it it must be lost or abandoned we don’t know one or other but it must be lost in some way and so the Ontario Court said no thats absolutely wrong thats not correct thats not why it was appealed to The Ontario Court.

The Owner and occupier of the premises is entitled to prior possession. Coming back to the arguments we saw now it wasn’t attached but they might be able to argue they had control over this area and it discusses all the cases on that that they had control over the basement area that was quite a big business that he had and they had control over the basement area.

And they also argued we don’t use the word “servants” now its an old fashioned word but because they’re employees and we will look at employees and employers because there is another little twist to the finders cases sometimes employers have a better right then employees even though the employees found it. Deemed to fine for him. Some cases say that when you’re an employee and you find in certain circumstances then the employer has a better right than you as the employee but not in all situations. Because you’re not an employee all the time, and sometimes it’s quite seperate from your employment, but if it is central to your employment then you may have to hand it over to your employer.

Ontario Court of Appeal decision:

We’ll see when we go through the analysis of the judgement that even though he discusses the occupier argument he’s quite clear that the employer and employee one wouldn’t have gone in favour of Mr Grafstein and even though he discusses the owner occupier argument in some detail, he’s not decisive The Judge in saying in the end it should go in favour of the owner.

• So why did the owner, Mr Grafstein, why did he win? What was the crucial reason as to why he won? What was the crucial reason? What was the key reason that Mr Grafstein won the case? Why was it in Mr Grafstein’s possession when they found the money? So lets go back to the transaction again and we’ll go through it. So the moment he handed it over, he took possession of the box and the contents, didn’t he? That was the crucial thing.

Grafstein: reasoning for deciding:

• Finder must come into possession at a time when no one else has possession. So that is the crucial thing, so when they found the money, Mr Grafstein argued that he was already in possession The Court said he was already in possession.
• Grafstein came into possession of the box when Holme brought it to him. When Holme brought it to him so when he came to him and said What shall i do with this? He’s not taking sufficient care and control as a finder, the guy in Bridges v Hawkesworth didn’t say, what shall i do with this money? He said, I found this money and I’m handing it over to you to find the true owner. So the finder has to take possession. And the argument here is for possession. You must have both a physical. They had the physical they had the box, but the mental was lacking. What shall I do with this? Showed no intent to control the box or its contents. Controlled physically, but not mentally. Remember those words. What shall I do with this? Whenever you find something never say what shall i do with this? Just blank them out. And at that point, Mr Grafstein said put it on the shelf. It could contain tools. Now that’s quite important that he said that.
• Possession = physical control + animus (intent) to control. Possession requires physical control and animus
  , intent to control. Its two things, physical and intent. A but like assault and battery. Battery, physical and intent requires both those things. And in this case, the argument here is that while the employee fully took physical control, they lacked mental control. But then you could argue because the employee put it on the shelf, who physically had control was put on the shelf. The employee, arguably, they didn’t seem to go into that. So I think they accepted that when Grafstein said put it on the shelf it could contain tools he’s showing an intent to control the box and the contents. And when the employee put it back on the shelf the employee’s acting as his agent to do it on his behalf because he doesn’t actually have the physical control himself at that moment. And that wasn’t really argued, but the employee did it for him. So it’s important that you have both. And so he said, put it on the shelf it could contain tools.
• Possession of a box - presumption of possession of contents. And then they go to the next thing, which is very important, possession of the box. There’s also a presumption and you’re experts on presumptions because we looked at them later on and other parts we looked at them in negligence (Res Ipsa Loquitur). Presumption that you possess the contents. It’s only a presumption remember so can be rebutted. So when you say, I’ll take control over this, put it on the shelf, when you said it could contain tools, why was that important? Why was that crucially important if he said put it on the shelf, its just an old box I don’t give a stuff about it just put it on the shelf all he’s doing then is taking control of what? The box. He doesn’t care about the contents. So you could rebut the presumption. But when he says it could contain tools, even though he’s totally wrong, he was interested in controlling the contents.

So it’s beautiful stuff for breaking things down. So it’s a presumption that if you take control of something it involves the contents, but if show no interest in the contents, the presumption can be rebutted because you’re not interested in the content. So those words, he said, were quite crucial.

• “It could contain tools - put it on shelf” showed manifest intent to possess the contents and take custody of them. Doesn’t matter that he was totally wrong, but he was interested in what? there was something in that box. And then you should put it on the shelf. So he showed intent to control the contents as well as the box. If he said, look, its just an old box, i don’t really care about it put it on the shelf then he would’ve showed no intent to control the contents and at that point, the presumption would have been rebutted.

Really important for the analysis of finders problem so every step you have to analyse who took possession first. So when he said put it on the shelf it could contain tools he took possession of the box and the content ls by saying it could contain tools. If he hadn’t said it could contain tools, it may have rebutted the presumption. Really important that he said that.

So if we go back to that the time they opened the box and found the money, he already had control over the box and the contents, even though he got it totally wrong. He doesn’t have to know what’s in it exactly. But he showed interest and intent to control the content.

At moment box opened Grafstein already had possession of the box and its contents. So therefore, at the moment the box was open Grafstein already had possession of the box and its contents, so it was too late for Holme and Freeman because they had, when they found the box, said, what shall i do with this? And that was interpreted to show no intent to control the box or the contents. And when he said put it on the shelf, it could contain old tools he took the possession at that point in time.

So it’s a really important case for finders to be able to assert control.

Remember always be clear that you’re asserting control because you can lose it even though you found it if you haven’t asserted sufficient care and control over it.

Question 15

What is the key case for finders?

Answer 15

Judge: Lord Justice Donaldson (who actually replaced Lord Denning on the English Court of Appeal). He was the master of roles after Lord Denning.

Case: Parker v British Airways Board.

Question 16

What are the elements of Parker v British Airways Board?

Answer 16

A really short, clear, easy to understand judgement and it gives them good guidance on what to do in a finders case.

Facts:

• £850 gold bracelet found in the executive lounge. So this it involved a £850 gold bracelet found in the executive lounge.

Now Mr Parker was the finder, he had read Grafstein, so he knew what to do, so he zoomed in, was on the floor, so it wasn’t attached to the building, picked it up, went over, handed it in, left his name and address in case the true owner didn’t come back, he knew his Grafstein very well. He took care and control of it, handed it in and then he waited to hear what would happen.

And in the end he heard nothing.

So he checked with British Airways. Whats happened to that bracelet and what have they done with it? What has British Airways done with it.

They’re a multi-billionaire company (B.A). What have they done with the £850 bracelet?

They sold it.

Fly the friendly skies with British Airways and if you hand something in, we’ll sell it, and make £850 profit. It’ll make our books look really good. Unbelievable. So he (Parker) thought that was wrong.

Parker was obviously on a business trip flying out of the UK.

He was in the executive lounge, which is the equivalent of our Koru Club (Air Nz) so he his ticket had to have a special thing to go in and for first class passengers and also for those who have entry to the lounge.

Reasoning/decision/rationale:

Rationales for rules about giving rights involving finding:

• The first thing the Judge does here, which is a very good thing, he sets out the rationale for why do we have to have rules about finders?

In fact he mentions that in Parliament there was a commission report saying there should be a statute on it but he says Parliament never got around to do anything but as you see its very nice that the common law has an answer for everything. And it does.

The common law cases develop in a way that they find an answer, and their answers are pretty good because they are based on the facts of cases.

The statutes however tend to be drafted in isolation when they have all the information as to what may happen. But the common law is based on the reality of whats happened.

And so you then have to come up with the fairest way of dealing with this.

So the Judge said the common law will always find an answer.

So what are the rationales?

• Prevents a free-for-all. First of all he said we have to give rights to someone, otherwise it will be a free for all.

There will be an absolute free for all as people will just fight over it. And so we have to say who has certain rights.

Because there have been criticisms of Bridges v Hawkesworth over the years for saying a finder has some rights.

But if you don’t give the finder rights and someone comes along and takes it off them and says “you’ve got no rights, ill take it off you”.

• Facilitates reuniting the true owner with the goods. The even more important one is the most important thing is we should have rules that will facilitate reuniting the true owner with the goods.

The whole purpose of giving rights is to at least give the true owner an opportunity to come back and get the goods that someone else has found.

And this was the argument of British Airways, was, people always come back to where they lost something, which is true.

If you lose something, you go, where was it? And you go back to that point. So they said we should have the better right.

But if the finder has no right, what is going to happen? What would happen if the finder had no rights?

They would steal it, and they would never hand it in if Finders have no rights.

So at the end of the day, we have to give incentives for finders to find things . So we have to have rules that give incentive and also impose obligations. So there is a chance for the true owner.

If the true owner doesn’t come back. We give the finder rights. So There is an incentive for them to do something about it in those circumstances.

The rules are there for incentives for finders and also for occupiers of things that are taxed also have an obligation to do what they can, to make sure that they put it in a place where the true owner may have a chance to get it back.

Reasoning in the case:

Rights and Obligations of the Finder:

What the Judge does on page 191 (CM), which is a great framework, is an example of what you should be summarising in all the case lines. (Even if you are doing entrapment) a nice summary.

• Were goods lost or abandoned? So he goes through and says first thing in a finders case are were the goods lost or abandoned?

Now that’s normally established by no one claiming them. So if no one’s claimed it, we can either assume they’ve been lost or they’ve been abandoned.

We can’t know for sure because we don’t know if they intended to throw them away and abandon them.

• Did finder take care and control? Control and animus must co-exist. Looking at the rights of the finder first.

Did the finder take care and control? This is Grafstein.

Control requires animus. So it must be both physical control and mental control.

Animus means mental control must co-exist.

So the Judge, in fact gives the examples, a nice example saying if you see something, you haven’t found it.

If you see a valuable watch over somewhere. You haven’t found it. If someone else picked it up and takes control of it, they are the finder.

So a finder is not just seeing it. A finder is taking care and control physically and mentally. And we can see this in Grafstein as well.

So taking care and control is really important. You must take care and control.

And Mr Parker had taken care and control of the bracelet. He picked it up he handed it in and said i’ll leave my name if the true owner doesn’t come back.

Mr Parker did the right thing. He left it at the airport because the true owner might come back and retrieve their bracelet.

So Mr Parker has done everything by the book and we encourage him to do that and he shouldn’t lose his rights if he does those things.

• Dishonest intent or in course of trespass = limited rights (Hibbert v Mckiernan).

The Judge also says that dishonest intent or in the course of trespass limits the rights.

Normally if it’s a trespass, it’ll be the situation of the occupier of the land will have a better right.

With regard to trespass basically there are a couple of general principles:

• One is that people can get a trespass notice from the police at any time saying you’re not allowed to come onto my property. You don’t have to have done anything wrong. If you don’t want someone to come on to your premises, you can just get the police to serve a trespass notice to say basically you are forbidden from going onto these premises.

Doesn’t matter if you have done nothing wrong. Trespass notices said you can’t go onto those premises.

And so you would clearly be a trespasser if there was a trespass notice you would be a trespasser even though it might be your friend. Your friend may not want to see you anymore. So you can’t say I’m back. No sorry. Trespass notice. You are trespassing at that point in time.

The other thing is that with a private house, you are, unless they have got a notice up saying they don’t want anyone on these premises so they can give a notice up saying we don’t want anyone come onto these premises, but If they don’t have a notice up, you can come on and knock at the door.

You are allowed to go up and knock on the door unless there is a notice saying they don’t want anyone on the premises.

But you can’t just wander around the house peeping in the windows and things that would be going beyond.

It is what is called an implied licence. Theres implied licence to come on and knock at the door and if you’re selling something you are allowed to do that.

But if the home owner says bugger off, what do you have to do? You have to leave. If you stay around, you’re trespassing at that point they have given you oral notice that they don’t want you to be there.

So these are just the basic principles.

• Obligation to take measures to acquaint true owner. And there is an obligation to take measures to acquaint the true owner, reasonable measures.

So the finder must do all those things.

Not be a trespasser.

And not act in a way that’s dishonest.

And take care and control.

and do what they can either by putting it in a safe place by handing it in to make reasonable efforts to try and ensure that there’s an opportunity for the true owner to come back.

So if the finder just finds it and just keeps it in there pocket and doesn’t hand it in, that would be an example of dishonest intent. In that case they’re not making any obligation. They’re not doing anything to actually try and get the true owner giving them a chance. Although true owners don’t often turn up.

Hibbert v Mckiernan (trespass case intermission). To show how trespass works in a finders case.

Hibbert v McKiernan: Where not attached, occupier must manifest intent to control the building and things on it before the finding.

That was British Airway’s argument. British Airways said, we have a ticket.

You have to have a ticket to get in. So we are controlling this room.

But it’s not just controlling the room, its also controlling locked objects in the room. So they did have control over the room, but was that enough?

• So British Airways said they control the entry. Control of right to enter.

So their view was that was enough control. But is this the same as a private home? Is it the same as a bank vault or strictly controlled room?

It was control because you have to have a ticket to get into those clubs, so it was controlled to that extent.

But The Court said:

• But no manifest intent to assert control over lost articles. It wasn’t sufficiently strong to say we can assume that you would control lost articles.

It wasn’t enough. So they would have had to put up a sign.

British Airways did say that they encouraged their employees to hand them in, but what was wrong with that? To manifest it what do you have to do? Telling your employees to hand it in why is that not enough? Because everyone else doesn’t know about it.

You’ve got to put a sign up and say, we control all lost articles, employees intend to hand them in and customers should hand them in. So you’re exercising control in that way. Most people don’t do that. So if they don’t do that they’re not exercising sufficient control.

• No evidence they searched for lost articles.
• No publication to users of the lounge that staff had to hand in lost articles. No publication that the staff had to hand it in.

So if they were searching for lost articles from time to time and they had publication of it they may have won the case. But they didn’t do enough.

So you’ve got the facts of this case: a lounge with specific controls as to who can go in.

If a lot of public is going through it it will not be enough to satisfy the manifest intent.

Private house depending on the circumstances, obiter, closely monitored bank vault will so there are examples of things that will be covered.

• Therefore Mr Parker won because when he found the bracelet British Airways did not have possession of it as the occupier of the land.

So the outcome was Mr Parker won because when he found the bracelet, they did not have possession of it. So he won the case.

But it was British Airways that took the case.

Parker actually won the case in the lower court. And they are desperate for £850, they went to the Court of Appeal.

But what they want to do and thats what big institutions do, they want to set a precedent that was in their favour.

Thats what they do they take a case to set a precedent. So big corporations can afford lawyers and they will go and fight to the death to set a precedent in their favour.

But Parker won the case.

And I don’t think The Court was very impressed with British Airways behaviour.

Fly the friendly skies but we will take $3000 dollars from you if we can.

So thats Parker’s case.

The other important thing about Parker’s case was they did give a nice obiter statement about one other way finders cases can be decided and thats when an employee finds it, does the employee have a better right or does the employer have a better right?

Finder Employee v Employer (obiter):

• Unless otherwise agreed, finding in the course of employment or agency and taken into care and control is done on behalf of employer who acquired a finder’s rights.

So it wasn’t applied to the case because Mr Parker’s employer wasn’t suing.

Unless other wise agreed. So you can have a contract as we’ve seen contracts. Once you get a contract the reasonable contract will be in force.

So if the employer requires you to hand things in and says that they will take a better right to it then you’ve signed a contract saying that if i find something the employer will have a better right. But that’s not always the case.

Finding in the course of employment. So thats the test.

Or agency taken into care and control is done on behalf of the employer who acquires a finders rights. So you are almost acting as the kind of agent or the hands and feet of the employer if its in the course of your employment. Crucial words.

• Exceptions: Finding is wholly incidental or collateral to employment.

Because if its wholly incidental or collateral to your employment, then the finder gets the better right, not the employer.

So those are the crucial words all the way through. Look for the crucial test. Was it in the course of employment or was it wholly incidental. Thats the legal requirements. Application in future cases.

Always remember that in your law career, whats the legal test? Get that clear in your mind and then see how its been applied in previous cases and then your good.

Looking at this in detail now:

• Even if he was in the course of his employment the finding was incidental. So in this case, even if he was in the course of his employment for Mr Parker they said it would have been incidental.

Because he was probably going off on a business trip to Europe somewhere to carry out business. So even though he was working at the time, the finding wasn’t in the course of his employment, it was incidental.

He’s going off to the airport to go off and do some business deal or something else over in Europe.

So the fact he’s employed doesn’t make him in the course of his employment.

The finding must be specifically because of his employment. In the sense that it was part of his job and he found it in relation to his job as opposed to incidental.

He’s on the way to do his job. He didn’t find it when he was doing his actual job. He was travelling to do his job.

So even though he’s employed, thats not the test. It was incidental in that case.

• Different for all British Airways employees (Why?).

They also give an obiter statement saying its different for all the British Airway employees, and i think they’re assuming the people working in the lounge.

If they were tidying up and they found it on the floor it would be in the course of their employment because their employment is to tidy up the lounge.

So they would be in the course of it.

But it might be different for example if an employee was on holiday and going off for a holiday it wouldn’t be in the course of their employment, it would be incidental to their employment.

They are assuming the ones working in the lounge. But not every British Airway employee on a holiday break and they’re going up through the lounge, and going off, that would be incidental to their employment.

Question 17

What are the elements of Hibbert v McKiernan [1948] 2 KB 142? (Case that shows how trespass works in a finders case)

Answer 17

Facts:

• This case involved a private golf course. It was a private golf course with notices all up saying its a private golf course Please keep out.
• So if you go onto the gold course and you’re not a member what are you? A trespasser. So its pretty straightforward.
• They also had a police officer from time to time to keep people out.
• In this particular case, the police officer was on duty as well to warn trespasser’s off.
• Finders trespassed onto the golf. course. And what they wanted to do was
• Find “abandoned” golf balls as they said. If anyone’s played golf you hit a ball it might go into the creek or into the woods and you look for it for a while swear and curse because you can’t find it so you drop another ball. So you’ve intentionally said you’ve given up on that ball, so you have abandoned it (the people who lose them).

And if you abandoned something, does it belong to anyone? No it doesn’t belong to anyone.

So their argument was in this particular case they were finding and they have the better right to the balls because they’ve been abandoned and therefore they don’t belong to anyone and therefore they are able to be the owners of the golf balls.

• But The Court said: Intent to exclude trespassers. Because there was a clear intent to exclude trespassers with the signs up and police officers.
• The occupier had a prior right to possession of the abandoned golf balls. The Court gave occupier a prior right to possession of “abandoned” golf balls.

So even though they’re abandoned by the absolute owner of the golf ball, because they kept people out in the golf course they had a right to those abandoned balls before they were found.

Remember that it’s always who comes into possession first. So they (the golf course) already had a right to it because they had kept people out in regard to trespass.

So that’s an example of how as a trespasser, even if its been abandoned, you won’t win the case if you find it because you are trespassing.

So that’s one exception to finders finding as a trespasser or acting dishonestly will take you outside the rights of a finder.

But otherwise if you follow these then you are in a good position as a finder.

However, another important thing, The Court then looks at how can a occupier trump the finder?

• Attached to or under land or attached to building = prior right. We already that first of all if its attached or under the land automatically the occupier wins because you have to interfere with their property.

So if its a attached or under, you automatically win as the occupier. So you have a prior right. You don’t have to know about it either. You don’t even have to be aware of it because the item is attached to your land you possess it by the attachment.

So your right of possession starts once it’s attached or under the land or also attached to a building. So they accepted the extension attached to a building or the land or under it. You the win the case because you already have possession of it because of the attachment in that case.

• Where not attached, occupier must manifest intent to control building and things on it before the finding. Where it’s not attached you can still win.

And this is what this case was about as the occupier, where you have a manifest intent.

And the crucial thing to remember is manifest means it has to be known not just you having the intent manifest means you make the world know about it, you manifest it to the world to control the building and the things on it before the finding.

• Manifest intent may be express or implied from the circumstances.

They give some obiter examples of this in this case of where it can be expressed meaning it’s obvious from the circumstances or by putting up signs or its implied from the circumstances.

And also the actual occupier also has obligations just like the finder to make sure the true owner is found.

Control:

Firm control - Animus Assumed.

Examples of where control would be enough and all three judges give examples.

• The Court of Appeal Judges indicate the following examples of where an occupier has so much control over the area and the things in it, that they would have prior rights of possession before the finding.

The following examples were only obiter dictum so they are not actually based on the facts of the case.

• Bank Vault. A bank vault. They said if you’re being shown around a bank vault, it’s such a secure thing. Its obvious from the circumstances that you also control things in it. The control is so tight over a bank vault, it’s also obvious that you would control lost property in there as well.
• Same thing with regard to a private home. Private home is a general principle, and if it’s a private home, we are opening it to people on a Saturday to look around and do tours of it and charging for it, its maybe a bit different, maybe more like a shop then, private, they’re talking about a private home which is being used as a private home.

In those circumstances basically, its clear from that fact that you just can’t, that the owners of a private home and the occupiers of a private home have a prior right because they exercise total control over the home and everything in it.

• And the other one is a room with very strictly controlled access. Very strictly controlled, so not any room.

So these are just obiter they are not developed. But they give you a taste of the Court of Appeal saying on those sort of circumstances, the occupiers gets a prior right, because the control is so strong. Its also clear that they also would control things in the area.

So the stronger the control over the area, The Court will say you also control things in it and thats clear to people coming on to your premises, that you control in those circumstances.

Then they give some examples which are quite helpful, they give some examples.

Need to make manifest Intent to Control Lost Thing:

• The following examples are given by Donaldson LJ at 191 where the occupier would have to show manifest intent to control lost things by sign:

In other words you have to make it clear, its not obvious from the circumstances that you are actually controlling it to that degree.

So you have to put a sign up saying, and we control all lost property in this area.

You have to put that sign up.

The examples they gave were this:

• Unfenced front garden. Mark doesn’t think this is a good one. Just because you haven’t got a fence does that mean people just wander onto your property saying lets have a party on this front garden on a Saturday night. Can you do that? Can you wander onto someone’s premises just because. It’s still private property isn’t it.

You have to put signs up. Stay off my garden. Its still a private property, don’t you think?

Should have to control it with a fence? They have an example of unfenced gardens but Mark doesn’t like it.

You have to have a fence, otherwise we don’t take it seriously. Because you can’t just jump onto someone’s garden because it doesn’t have a fence there.

Mark doesn’t like that obiter.

The other ones are more obvious.

• Public parts of a shop and supermarkets. They’re easy because people come and go and there’s no signs up normally.

So in those circumstances, if the shops or the supermarkets want to control it they would have to put up a sign that “we control all lost property in this area” we carry out searches for lost property. And so they’re making it manifest with big signs that they are controlling it before you come on, they are making it manifest.

No signs up they are not going to win the case.

• And the same with Petrol forecourts, again people are coming and going all the time.

So they are giving examples.

Lecture theatre similar to a public part of a shop? Because anyone can come in?

So those area you’d have to put a sign up.

Question 18

What are the elements of Byrne v Hoare [1965] Qd R 135 which applies a slightly different but similar test to the course of employment “incidental” obiter in Parker?

Answer 18

This is an Australian case. This is an example of applying slightly different tests but in some ways it’s similar to the in the course of employment, or incidental but they just have a different test.

This case was decided a bit before Parker.

This was a case that went to the Queensland Court.

Facts:

• A police officer was performing duty at a drive in movie theatre. To make sure everyone was behaving appropriately.
• And he found a gold ingot, which means a gold ring on the public exit.
• So he’s leaving the drive in theatre and on the exit as everyone’s going he sees this gold ring and picks it up.
• And he hands it in because his employment contract said he must hand it in so he hands it in.
• And no true owner has claimed it.
• So there was a contest between him and the police as to whether his employer should get it or whether he should get it.

Decision:

What they said in this case was they decided in favour of the officer, not the police generally.

• Being on duty that day it afforded him opportunity. It wasn’t the real cause of his finding. Anyone else could have found it where he was.
• So they are really applying the “incidental” test.
• He was walking back to the station. He finished his job, he’s walking back he’s in the public exit like everyone else. He finds it. And so they are really applying the “incidental” example in that case.

It was not the real cause. It gave him an opportunity to be there.

• Search warrant in private place?

They gave an obiter example saying if you had a search warrant to search in a private place where no-one else could be there and he found something that would be different.

Because he would be in the course of his employment, exercising the search warrant. And if he found it, it would be different. It would go to the employer in that case.

Thats an example of the distinction between incidental and employment.

• Minority: “duty” to give to employer gave employer the right.

Minority said because he had a duty to hand it in that gave the employer the right.

But the employer didn’t say they asserted a right to have it, he had a duty to hand it in. And that was all.

Thats not necessarily giving away his obligations to be able to claim it later on.

And so two judges said basically that he had a better right to it because it only gave him an opportunity to be there it wasn’t the real cause of it as it would be if it was using a search warrant in a private place.

And the mere fact that he had to hand it in, it doesn’t lose it’s right because of that.

A bit like what they said in Bridges v Hawkesworth, the fact that you hand something in doesn’t mean you lower your finders rights.

And even though he had a duty to do it, it doesn’t give the employer a better right.

This case is an example that backs up an application of incidental and in the course of employment. It’s not the same wording as in the course of employment of and incidental but its a good example of “incidental” in its work.

Question 19

What are the elements of Steel & Tube NZ Ltd v Hopkins?

Answer 19

This case here is a New Zealand case. It was a summary judgement.

A summary judgement is. It is a technical term for lawyers. If you’re trying to sue someone and you believe you have all the facts in your favour and they are incontestable facts, basically they’re pretty obvious facts that cant be contested at trial. You don’t have to go to trial to prove your facts. The judge can give a summary judgement on the facts because the facts are so obvious and say what the law would apply.

So it saves people going through the cost of a trial. If you can give evidence to The Court saying these are the facts and it’s obvious that the other party can’t deny those facts, and those facts are crucial to the legal result, you get a judgement straightaway without having the cost of the trial.

It’s a way of getting to Court a bit quicker and getting a ruling on the law.

Facts:

• A claim for conversion of property.

What happened here was it was a claim for conversion of property against the employer and Mr Hopkins.

• Defendant argued steel had been abandoned.

So what happened was the defendant argued that the steel had been abandoned.

Someone had bought a whole lot of steel, but then didn’t want it all. And said we don’t want that steel. So they effectively did abandon it.

And what the employer did was sell it off. He was the person that looked after stock and trade so he sold it off on the basis that he’d make some money off it.

The employer found out about it and said you have converted it. And said that we have a better right to that stuff.

Decision:

But the defendant Hopkins argued that it was abandoned and they didn’t want it (a bit like the golf ball case). They didn’t want it so we have it in these circumstances.

• Defendant = employee.

But The Court said he was an employee.

• Employer had the better right because:

The employer had the better right because:

• Steel found in course of his employment (stock-taking).

It was found in the course of his employment he was doing stock taking, wasn’t incidental and thats why he found this extra stuff.

He thought that these people have left it behind and don’t want it anymore. But was directly in the course of his employment when he was doing stocktaking so that meant the employer had a better right when he found it.

And secondly, they said

• Steel Found in plaintiff’s warehouse - exercised control over the warehouse.

They said the warehouse was quite tightly closed off. Its not like a shop and therefore they had control over the area and the things in it.

And they won on that basis. They won on two bases.

And they won the summary judgement and therefore Hopkins had converted it. He converted it by giving it away to someone else when they had a better right to it then he did.

So thats an example of an employer being in the course of their employment.

This is a High Court New Zealand case.

Because Hopkins was stock taking he found it and then kept it for himself and sold it off hoping his employer would never find out and they found out.

So the employer (Steel & Tube) were successful on a summary judgement.

These are factual examples for finders.

Question 20

What are the elements of the Recent Finders Example that we have to decide ourselves?

Answer 20

This was a case that was reported in the newspaper magistrate.

Facts:

• IT student was working as a janitor for channel 9’s Docklands headquarters in Australia.
• Found money in toilet sanitary bin.

While he was working he found money in a toilet sanitary bin.

• Called the supervisor.
• And the police and plumber came to get the money out of the pipes

So it must have been some in the pipes and some in the bin.

• And it was actually quite a lot of money. Total of $100,000 AUD.
• And he was honest and handed it in.

So just on those facts what do you think? What would you want to know?

He’s employed as a janitor.

What would you want to know about his employment?

Was it in the course of his employment. Was that part of what he was employed to do or was he just mucking around in there incidental to his employment.

So it has to be in the course of his employment. Was it incidental or not? And that would be the argument.

• What happened in this case was that no one ever claimed it.

And the magistrate in the lower Court decided…

Decision:

• The student was awarded $81,597 AUD of the money by the magistrate. We don’t know what happened to the rest of it.

So he got quite a lot of the money back in this particular case.

But there isn’t much legal analysis in this particular case because you’d have to know all those facts, which is crucial.

Was he employed at the time?

Was this something he regularly had to do, like the stocktaking guy?

Or was it incidental to his normal job? Which maybe just locking up the doors and keeping the premises safe and not worrying about what happens because it may have been the cleaner who normally did those jobs.

So that would have to be the facts you would have to go through.

• What do you think should have happened to the money?

Question 21

What are the elements of Waverley Borough Council v Fletcher [1995] Qb 134? (Summarising case).

Answer 21

We will see that the judges came to different conclusions.

Facts:

• This case here involved a public park where a man had a metal detector.
• And nine inches underneath the ground he found some medieval coins worth a lot of money.
• So there was a dispute between the Waverley Borough Council and Mr Fletcher.

So he’s out there with his metal detector and digs down nine inches and finds it in a public park.

So lets look at how the two different courts dealt with this.

Decision:

• Firstly in the Lower Court the council were the freehold owners of the park.
• To be used for specified ball games and recreational pursuits of “like nature”.
• And there was actually a sign prohibiting metal detectors but it had been taken down. Policy of prohibiting metal detectors had been taken down.

So if the sign had stayed up and he’d seen it, then he probably would be trespassing doing something he shouldn’t be doing on that particular ground.

But the sign had been taken down.

• Notices torn down. So therefore he was unaware that he wasn’t allowed to do that.

And normally you do need a sign to stop people from doing things. As far as he was concerned it was a public park and he was doing his bit with his metal detector.

• Finder unaware of policy.

So he’s totally unaware of the policy.

• And he located the medieval gold
  brooch, which is worth a lot of money.
• He dug down nine inches under the ground to remove the brooch.

So the dispute is between the council and him.

We will look at the arguments in the lower Court and then we will look at the arguments of the Appeal Court.

So judges took different views of those facts.

It seems that the council would win because Fletcher had to dig down nine inches and disturb the land (like Sharmans case) to pick it up. So therefore if it’s under the ground or attached in that sense it would seem to be an obvious answer that the council would win but the lower Court disagreed. Thats why they had to appeal the case.

In the Lower Court:

Queens Bench High Court:

• Council was not actually occupying it, they owned it but they didn’t occupy it and are not there like a private house.

So they ruled the council out as not being true occupiers.

• And they also said that he was using it for recreational purposes. Even though he was using a metal detector.
• Therefore it goes to the finder.

So they’re saying you can’t argue the attached to the ground because they aren’t an occupier.

Because you weren’t physically occupying the ground. Even though it was difficult for the council to do that. Unless you had council workers out there all day and night living in tents on the ground.

So Fletcher won the case in the lower Court.

But it went on appeal.

Court of Appeal decision:

We got a lot of money involved and it went up to the CA.

The Court of Appeal agreed with Waverly and said:

• The lawful possessor of the land posses things attached or under the land. They don’t have to actually occupy as long as they possess it. They were the possessors, owners and possessors of the land. Thats enough.
• And also they said digging up the soil was not a permitted use but an act of trespass.

Digging it up was seen as an act outside the recreational purposes because he’s digging down nine inches to get it out so he also was acting as a trespasser in that particular case.

• So the bracelet goes to the council. So the council won in the end of that particular case.

So the Court Of Appeal judges disagreed with the Queens benches, High Court judges.

So finders is about small problems.

Question 22

Exam Preparation tips for Finders/Entrapment.

Answer 22

1. Draw up framework of potential issues.

If your just getting organised in the second part, first of all draw a framework of the potential issues.

What are the issues in the confessions/entrapment problem that i have to be concerned about?

So you draw that up so you know what kind of issues. What are the legal things that have to be satisfied? Thats what your asking. So you know what they are because they will be in the problem somewhere.

Not all of them maybe but at least you know in advance what to look for if you don’t know what the legal issues are you don’t know what to look for.

Just reading itself is a very interesting problem. So thats first.

2. Arrange cases in terms of their authority, material facts and rationales under appropriate issues.

And then arrange your cases, know which ones are the highest authority.

Know the key facts and the underlying rationales. Thats where you really get your marks (rationales) under appropriate issues. Because once you’ve got those you’ve got the ammunition to be able to look at arguments and counter-arguments.

If you want to get the A and A+ its the ability to see more than one side of the argument and then say it could be argued this way and say why that would work and why it wouldn’t work and does that work with the rationale?

You might say they could argue this because there is a difference here but on the other hand, The Court shouldn’t accept that because it goes against the rationale or its not as strong as the case thats in favour. So you have to do that. That process is very important, right?

The same for your opinion.

You can still get a good mark if you see one side but you get a really good mark by seeing more than one. So it’s a creative enterprise.

3. Analyse exam questions and apply your framework specifically to the particular facts.

And then start practising on exam papers. You just need to have lots of practice because the to exams is time. With an opinion you get plenty of time and use that time wisely each day to think about it.

In the exam you got 2 hours, an hour for each. So you’ve got to be pretty decisive about it. So the more you practice exams, the quicker you get at recognising issues and you practise writing answers the more succinct you get.

Don’t just say i know the content well ill see how i go on the day. You have to have that practice. You can’t function without practice and the more practice you do, the more confident you get.

4. Come to a reasoned, well justified conclusion on each issue.

And then come to reasoned results and you can work in teams you can mark each others papers and argue over it. You can make up your own problems.

In this paper we are talking about facts, differences and similarities and the rationales.

When you come to statutory interpretation it is the meaning of words. So you can be focused on the meaning of words and the purpose of the act its the same sort of reasoning.

What could that word mean? Every word can mean different things, but if we take one meaning will it meet with the purpose of the act?

Why did parliament put up this act? We take this meaning it may undermine the purpose, if we take this one it will fit the purpose.

So you get used to using words. Which is really important.